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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barclays Bank Plc v Bee & Anor [2001] EWCA Civ 1126 (10 July 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1126.html
Cite as: [2002] 1 WLR 332, [2001] 3 EGLR 41, [2002] L & TR 3, [2001] EWCA Civ 1126, [2002] 1 P & CR 24, [2001] 37 EG 153, (2001) 82 P & CR DG22, [2002] WLR 332

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Neutral Citation Number: [2001] EWCA Civ 1126
B2/2001/0145

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY COUNTY COURT
(His Honour Judge Reddihough)

Royal Courts of Justice
Strand
London WC2
Tuesday 10th July, 2001

B e f o r e :

LORD JUSTICE ALDOUS
LADY JUSTICE ARDEN DBE
MR JUSTICE WILSON

____________________

BARCLAYS BANK PLC
Claimant/Appellant
- v -
(1) ANDREW JOHN BEE
(2) ANGELA ELIZABETH BEE
Defendants/Respondents

____________________

(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040
Official Shorthand Writers to the Court)

____________________

MR S BERRY QC and MISS S TOZER (Instructed by Messrs Denton Wilde Sapte, Milton Keynes MK9 2HR)
appeared on behalf of the Appellant
MR M WEST (Instructed by Messrs Tallents Godfrey, Newark NG24 1AQ)
appeared on behalf of the Respondents

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

  1. LORD JUSTICE ALDOUS: This is an appeal by the claimants, Barclays Bank Plc, with leave of this court, against the order of His Honour Judge Reddihough of 2nd January 2001. By that order the judge set aside the order of District Judge Higginbottom of 27th June 2000.
  2. The facts were agreed between the parties. By a lease dated 24th January 1983 premises known as 5 and 7 Westgate, Southwell, Nottinghamshire were demised for a term of 15 years from 25th December 1982. At the relevant time for these proceedings the claimants, Barclays Bank, were the tenants and the defendants, Mr and Mrs Bee, were the landlords.
  3. On 26th June 1997 Mr Bee wrote on behalf of himself and his wife to Barclays Bank in these terms:
  4. "As you know, the current lease for the premises at 5 Westgate finishes this December. At present the premises as a whole are very badly divided with the bank occupying space above 7A and No 7 extending above the bank on both first and second floors. Also, the ground floor that extends to the rear from below the room you use as a kitchen is in a very poor state and really needs demolishing and rebuilding. The roof over the part you occupy needs re-making.
    It is therefore our intention to carry out development work on the property to make the building sound and divide it vertically so that it becomes a much more attractive proposition should we wish to sell all or part of it.
    If you would like to renew the lease we could perhaps meet to discuss possible ways of achieving the above aims. We anticipate wishing to start work in 2-3 years time, but will need to know your intentions fairly soon so that appropriate plans can be drawn up."
  5. On 9th July 1997 Barclays Bank responded, stating that they would contact Mr and Mrs Bee again as soon as they were ready to discuss both the lease renewal and the proposals for restructuring or repairing the property which they agreed might be best dealt with at a meeting at the property. The letter went on:
  6. "In the meantime, as I am unable to advise you on this aspect I would suggest that you consult a solicitor on the procedure for dealing with the renewal of business tenancies.
    I will be in touch again as soon as I have something definite to say."
  7. There was no further correspondence between the parties until solicitors acting on behalf of Mr and Mrs Bee wrote on 18th December 1997. That letter stated:
  8. "We are in receipt of copy correspondence between yourself and our Client Mr Bee from the summer, but we have now been instructed by Mr and Mrs Bee to serve Notice upon you, and enclose herewith Landlord & Tenant Act Section 25 Notice. Perhaps you would be kind enough to acknowledge receipt by returning one copy."
  9. Enclosed with that letter were two documents which I will refer to as document A and document B. One was not a copy of the other.
  10. Document A was a standard form section 25 notice which can be purchased at legal stationers. It was addressed to Barclays Bank and was stated to be in relation to 5 and 7 Westgate. It gave notice to terminate the tenancy on 1st July 1998 and it stated that Barclays Bank should within two months notify the landlords in writing whether or not they were willing to give up possession of the property. Paragraph 5 of the form as purchased contains two alternatives. The first alternative was struck out in document A, so that paragraph 5 read:
  11. "5. If you apply to the court under Part II of the Landlord and Tenant Act 1954 for the grant of a new tenancy, I/we will oppose it on the grounds mentioned in paragraph(s) ... of section 30(1) of the Act. (See notes 4 and 5.)"
  12. There followed paragraph 6 which required that all correspondence should be sent to the landlord's agents, being the firm of solicitors who had written the letter.
  13. Document B was in similar but not identical form to document A. In particular the second alternative in paragraph 5 was deleted. Thus paragraph 5 stated:
  14. "5. If you apply to the court under Part II of the Landlord and Tenant Act 1954 for the grant of a new tenancy, I/we will not oppose your application."
  15. Clearly either document A or document B should not have been sent. As the letter of 18th December made clear, one document was meant to be sent as the notice with a copy to be returned. On 23rd December 1997 Barclays Bank wrote thanking the solicitors for their letter of 18th December. They continued:
  16. "I am able to acknowledge safe receipt; however, I am not able to confirm the validity of the Notice.
    From the copies returned herewith, you will see that you served two Notices which are different and not entirely complete.
    Are you able to confirm that your client will not oppose an application to the Court for the grant of a new tenancy."
  17. To that letter solicitors for Mr and Mrs Bee wrote, on 24th December 1997:
  18. "Thank you for your letter of 23 December. We apologise for the incorrect Notice submitted.
    It is our Client's intention to oppose an application to the Court for the grant of a new Tenancy.
    We accordingly enclose forms in duplicate, and should be grateful if you would acknowledge safe receipt."
  19. Enclosed with that letter was a document which I will refer to as document C. It was similar to documents A and B, but the first alternative in paragraph 5 was deleted and the second alternative was completed, so that it read:
  20. "5. If you apply to the court under Part II of the Landlord and Tenant Act 1954 for the grant of a new tenancy, I/we will oppose it on the grounds mentioned in paragraph(s) F and G of section 30(1) of the Act. (See notes 4 and 5.)"
  21. Barclays Bank referred the matter to their solicitors who took the view that document B constituted an effective section 25 notice which could not be withdrawn, with the result that document C was not an effective notice. Those advising Mr and Mrs Bee appear to have disagreed. Barclays Bank started proceedings in the Newark County Court seeking the grant of a new tenancy upon the pleaded terms. In answer Mr and Mrs Bee opposed the grant of a new tenancy. They alleged that the appropriate notice was that given in document C.
  22. On 18th April 2000 District Judge Higginbottom ordered the question of the validity of the notice served by Mr and Mrs Bee to be tried as a preliminary issue. That issue came before him and he declared that document B was a valid and effective notice and that Mr and Mrs Bee were precluded from opposing the grant of a new tenancy. Against that order Mr and Mrs Bee appealed. As I have said, the appeal was heard by His Honour Judge Reddihough. In his judgment handed down on 2nd January 2000 he allowed the appeal. In his order he declared that documents A and B were not valid notices, but that document C was a valid notice and therefore Mr and Mrs Bee were entitled to oppose Barclays Bank's application for the grant of a new tenancy on the grounds specified.
  23. The ratio of his judgment is contained in paragraphs 21 to 24 of the judgment:
  24. "21. Bearing very much in mind practical considerations and the examples set out above, I have come to the conclusion that it is permissible and appropriate to construe or consider an apparently valid Section 25 notice together with the documents which accompany it. In my judgment, it is therefore appropriate in the present case to construe or consider the First Notice [document B] together with the Second Notice [document A] and the covering letter. I reject the submission by the Claimant that the Second Notice and covering letter amount to or include declarations of subjective intention and are inadmissible. They are, to use the words of Lord Steyn in Mannai at page 767H, part of the `relevant objective contextual scene'.
    22. Once the Second Notice and covering letter are admitted and read together with the First Notice, then the proper approach must be that set out in the Mannai case; that is, how would a reasonable recipient have understood the First Notice in the light of the accompanying documents. Of course, because the test is an objective one, the subjective understanding or response of the Claimant in the present case is irrelevant.
    23. In my judgment, the reasonable recipient of the First and Second Notices, together with the covering letter, would have found the situation confusing and uncertain. It was obvious from the covering letter that the Defendants intended to send duplicates of one and the same Notice. In fact, they sent one Notice stating they would not oppose a new tenancy and another stating that they would oppose it, but not stating on what grounds. A reasonable recipient would respond, in my judgment, by saying `What are our landlords up to? Are they opposing a new tenancy or not? How can we properly respond to this situation?' It follows that I reject the argument of the Claimant, that a reasonable recipient of these documents would conclude that the Defendants were not opposing a new tenancy and that they could rely on the First Notice to the exclusion of the other documents.
    24. I therefore conclude that, because of the ambiguity and uncertainty created for the Claimant in relation to the First Notice, that Notice is of no effect and is rendered invalid. For the same reason, the Second Notice is of no effect, although, of course, it would also be invalid because of its failure to state the grounds of opposition. It must follow that, if the First and Second Notices are invalid, then the Defendants were entitled to serve and rely upon the Third Notice, which is a valid Notice."
  25. The basic law is not in dispute. Section 25 of the Landlord and Tenant Act enables a landlord to terminate a tenancy of the type in issue by giving a notice to the tenant:
  26. "... in the prescribed form specifying the date at which the tenancy is to come to an end ..."
  27. The prescribed form is that prescribed by regulations made by the Secretary of State. It is not in dispute that the forms used in documents A, B and C are in the prescribed form provided they are filled in correctly. I say "filled in correctly", as sections 25(2)-(6) set out the necessary requirements for the information given. Thus subsection (6) states:
  28. "(6) A notice under this section shall not have effect unless it states whether the landlord would oppose an application to the Court under this Part of this Act for the grant of a new tenancy and, if so, also states on which of the grounds mentioned in s.30 of this Act he would do so."
  29. Section 24 of the Act provides that such a tenancy shall not come to an end unless terminated in accordance with the provisions of the Act. It allows the tenant to apply to the court for a new tenancy if the landlord has given notice under section 25 of the Act to terminate the tenancy. Section 30 of the Act enables the landlord to oppose an application under section 24 of the Act upon grounds which have to be stated in the notice. The relevant grounds in this case are contained in section 30(1)(f) and (g). Subsection (f) is concerned with a case where:
  30. "... on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof and that he could not reasonably do so without obtaining possession of the holding;"
  31. Subsection (g) covers the case where the landlord intends to occupy the holding for the purposes of a business to be carried on by him or as his residence.
  32. It is not in dispute between the parties that document A cannot be an effective notice as paragraph 5 was not completed so as to mention any of the grounds referred to in section 30. It is also agreed that document B could constitute an effective section 25 notice. Similarly, it is agreed that document C which refers to paragraphs (f) and (g) of section 30(1) of the Act could constitute a valid notice. It is also agreed between the parties that a valid section 25 notice, once served, cannot be amended nor can it be withdrawn. It follows that if document B constituted a valid notice then document C could not be a valid notice. Thus the dispute between the parties depends upon the validity of what was done by letter dated 18th December 1997.
  33. I have read the letter of 18th December, but note at this stage of my judgment that Mr and Mrs Bee had instructed their solicitors to serve a section 25 notice upon Barclays Bank. The letter went on to state that there was enclosed with the letter a Landlord and Tenant Act section 25 notice. The letter also suggests that there was a copy to be returned. Thus the first question to decide is: what was the notice that was served together with the letter? Two documents were sent. Was it only document B or only document A; or was one or other of the documents to be read in the light of the other documents?
  34. It is apparent from the passages of the judgment which I have read that the judge concluded that document B should be read in context of the letter of 18th December and document B, and in those circumstances he concluded that it was not clear as to what the relevant intention of the landlord was.
  35. Mr Berry QC, counsel for Barclays Bank, submitted that document B was the first valid notice. Of course that is correct if the notice that was served with the letter of 18th December was the only notice. He went on to emphasise to us that document B was a valid notice on its face, as it was in the prescribed form. He submitted that it could not be invalidated by reference to extraneous material. In principle, of course, that is right. If document B was the notice that was served and it need not be construed together with document A as part of the contextual background, then that is an end of the matter.
  36. Mr Berry submitted that when considering the documents that were sent together with the letter of 18th December, it was clear that document A was not an effective notice at all; in that it contained none of the grounds mentioned in section 30. As such, it could not be considered as being inconsistent with document B. There was an effective notice and only one effective notice and that was document B.
  37. He referred us to Byrnlea Property Investments Ltd v Ramsay [1969] 2 QB 253, I think to distinguish it. In that case notices were served which were inconsistent. Lord Denning, at page 264, said this:
  38. "Seeing, therefore, that as soon as the written notice is given, there is a binding contract, I cannot see any room for a notice in the alternative. If a tenant gives a notice that he desires `the freehold or an extended lease', without saying which, there can be no binding contract. The statute simply cannot begin to operate. If I may put it into the form of offer and acceptance, it stands in this way: the landlord, under the compulsion of the statute, whether he likes it or not, makes an offer to the tenant to let him either buy the freehold at a fair price or to take an extended lease of 50 years at a fair rent. In order to accept that offer, so as make a binding contract, the tenant must accept one of these alternatives. If he replies: `I desire to have either the freehold or an extended lease,' then there is no contract because no one knows which it is. It is too uncertain to be a contract. It is just, as if I say: `I offer to sell you my horse for 100 or my cow for 50' and you reply: `I accept your offer.' There is no contract: for the simple reason stated by Lord Wright: When the words "fail to evince any definite meaning on which the court can safely act, the court has no choice but to say that there is no contract": see Scammell & Nephew Ltd v HJ & JG Ouston [1941] AC 251, 268 HL(E).
  39. So also if a tenant sends in two notices, one for the freehold, the other for an extended lease in the same envelope, both would be bad: for it would be again quite uncertain which of them he desired. There would be no contract. He must make up his mind which he wants and give a certain notice for that one."
  40. Although the facts were different in that case to the present, the principle stated by Lord Denning applies. In this case the landlord stated that he was sending a notice. He in fact sent two documents. On the face of them they are inconsistent. One of them stated that he would not be opposing the grant of a new tenancy, while in the other he stated that he would be. No doubt one complied with the terms of the Act and would be an effective notice, and the other was not because it contained none of the grounds contained in section 30 of the Act. If the principles of contract are to be applied, as Lord Denning suggested that they could be, I cannot see that there could be a valid contract if Barclays Bank had said "I accept your notice". The terms of such a contract would in my view be unclear.
  41. Mr Berry also relied on Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749. He submitted that the documents that had been provided with the letter of 18th December should be construed objectively and contextually. If so, the recipient would have in mind the requirements of section 25 and would realise that what he had received was an ineffective document and an effective document. If so, the notice should be construed as being an effective notice, namely that set out in document B.
  42. In my view, the speeches in the Mannai case do not support the submissions of Mr Berry. That was a case where it was necessary to construe a document; in particular to decide objectively what was the relevant date. The question, as Lord Steyn said at page 772H, was:
  43. "The question is not whether 12 January can mean 13 January: it self-evidently cannot. The real question is a different one: does the notice construed against its contextual setting unambiguously inform a reasonable recipient how and when the notice is to operate under the right reserved?"
  44. If the notice referred to in the letter was document B with document A, then the appropriate question is: do documents A and B construed in the contextual setting unambiguously inform a reasonable recipient whether the landlord would oppose the grant of a new tenancy? As Lord Steyn pointed out at page 767:
  45. "The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene."
  46. He went on at page 768 to point out that the enquiry was objective:
  47. "... the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind. It follows that one cannot ignore that a reasonable recipient of the notices would have had in the forefront of his mind the terms of the leases."
  48. Later he said, approving the statement in Carradine Properties Ltd v Aslam [1976] 1 WLR 422, at 444:
  49. "That test postulates that the reasonable recipient is left in no doubt that the right reserved is being exercised. It acknowledges the importance of such notices. The application of that test is principled and cannot cause any injustice to a recipient of the notice."
  50. In this case the recipient of the letter of 18th December knew that the landlord intended to redevelop the property. Mr Berry reminded us that the intention expressed in the letter was for the future, which might not be a sufficient intention to satisfy the requirements of section 30(1)(f). However, Barclays Bank knew of the intention. They received two documents which read together were inconsistent, albeit one document was not completed in full. Were Barclays Bank left in any reasonable doubt that the landlords did not intend to oppose the grant of a new lease? I believe that the answer is that they were and a reasonable recipient would have been.
  51. Mr Berry submitted that that was not sufficient. He submitted that this was an obverse case to Mannai. He said that the letter suggested that a notice was sent together with a copy. There was an effective notice and another document. The other document cannot cast doubt upon the validity of the effective notice. True as that statement is, in my view it does not solve the problem. The principles are those laid down in Mannai. Here we are seeking to ascertain the intention of the landlord from the documents and the contextual background. In particular to ascertain whether unambiguously the notices or notice informed a reasonable recipient whether the landlord would oppose the grant of a new tenancy. In my view a person receiving those documents could not come to that conclusion.
  52. Mr Berry went on to suggest that the fact that there was doubt would not in certain circumstances settle the matter. I listened to that submission, but I believe it to be misguided. Every statement in Mannai is to the contrary; and I believe the principles laid down in Mannai must apply, whether or not one is considering a case such as this where two documents were sent which appear to be inconsistent or whether, as in Mannai, the dispute was whether a date should be read as meaning another date.
  53. Mr Berry also referred us to Lewis v MTC Cars Ltd [1974] 1 WLR 1499. In that case, as in this, the form contained two alternatives and the plaintiff failed to strike out one of the alternatives. However, he added a statement to this effect:
  54. "You ought not to be granted a new tenancy in view of the state of repair of the holding, being a state resulting from your failure to comply with the repairing covenant in your sub-underlease. On the termination of the current tenancy I intend to demolish or reconstruct the premises comprised in the holding and that I cannot reasonably do so without obtaining possession thereof."
  55. The facts of that case are very different to those in the present, and it cannot be assumed that the judge would have come to the same conclusion on the facts of this case. Templeman J said in that case:
  56. "No one reading that notice can be in the slightest doubt; the landlord accidently failed to strike out the first sentence and intended to oppose an application to the court for the reasons set forth in the notice. Indeed Mr Colyer, who appeared for the defendants, did not contend that there was any doubt or ambiguity, but said that the notice did not comply with the Act, because it did not contain the positive statement required by the Act. ... In the present case it would be perverse to turn a blind eye to the clear intention of the landlord as expressed in the notice, with the result that the notice does, in my judgment, on its true construction, state that which section 25(6) requires to be stated."
  57. If I had come to the conclusion that there was no ambiguity or doubt, then it appears to me the principle as stated by Templeman J would apply.
  58. In my view the judge was right: when one looks at the two documents which were supplied the intention of the landlord was not clear. The documents were inconsistent. I believe that at the heart of Mr Berry's submissions was his submission that the intention of the landlord was in this case clear because when you look at the documents you see that one was not completed; the other was complete and effective. From that he submitted that the recipient, taking into account his presumed knowledge of section 25 of the Act, would realise that the intention of the landlord was that expressed in document B.
  59. I disagree. The intention of the landlord was to give a notice and to serve a copy of the same document. In fact two inconsistent documents arrived, and a reasonable recipient could not conclude that what was stated in document A should be ignored. The enclosures with the letter of 18th December did not unambiguously inform the recipient what was the intention of the landlords. A notice is a document intended to inform the recipient. I accept that document A was not an effective section 25 notice, but it formed part of the information given to the recipient. It could not be disregarded any more than could the addition to the form in the Lewis case.
  60. In my view, the judge came to the right conclusion for the right reasons. I therefore would dismiss this appeal.
  61. LADY JUSTICE ARDEN: I agree.
  62. In my judgment the point is a short one. It is established by Mannai Investment Co Ltd v Eagle Star Assurance Ltd [1997] AC 749 that the relevant question here is whether a notice which the appellant seeks to uphold - referred to in this case as document B - was quite clear to the tenant: see per Lord Hoffmann at page 780, approving a test enunciated by Goulding J in Carradine Properties Ltd v Aslam [1976] 1 WLR 442, at 444. It must be plain so that the tenant is left in no doubt (see per Lord Steyn at page 768) or, in other words, if there is a doubt it is resolved in favour of the conclusion that the notice is ineffective. That doubt is normally in the tenant's favour. Here it is not. A curious feature of this appeal is that it is the tenant who wants to say that the notice is valid.
  63. The circumstances have been fully explained by Aldous LJ and I gratefully adopt his explanation of the facts. We do not know if the landlord did indeed originally intend to serve a notice of non-opposition or not, but that matters not.
  64. The function of a notice is to make a statement on which another party can act. It is of great importance that it is reasonably clear to a reasonable person in the position of the recipient. He should not have to take legal advice or start proceedings to find if the notice is valid or not. There are good reasons for this in this particular context, since a tenant may have to take an urgent decision as to whether or not to take over some other premises. As Lord Steyn explained in Mannai Investment at page 771, "In determining the meaning of the language of ... unilateral notices, the law therefore generally favours a commercially sensible construction."
  65. How does all this apply in this case? Mr Berry, who has argued this appeal with great eloquence, submits that there was in fact only one notice and the other - that is document A - should be totally disregarded.
  66. There are several answers to this submission. I will mention two. First, the fact that the notice, document A, is ineffective for the purposes of section 25 does not mean that it is a complete non-event. It makes a statement as much as a covering letter would do. Second, the reasonable man, in my view, whom as I have said must find the notice plain without having to consult his lawyers, might reasonably have thought that the grounds could be added later by the landlord as grounds of opposition to a new tenancy. Neither the notice, nor the notes on it, nor section 25 itself, says that the notice cannot be amended, although that is established by the case law.
  67. Mr Berry, however, has a further submission. He submits that the Mannai Investment case addressed the problem of when an apparently defective notice is in fact valid. This case on the other hand, on his submission, involves the reverse: when is a valid notice ineffective? In that situation the court has to reverse the Mannai test on his submission. In other words, it has to be satisfied that the notice is invalid. He submits further that the two notices should not be read together; that the tenant would know all about the law; and that document A in this case was not in fact a valid notice, it was simply a non-event because it did not state the grounds of opposition.
  68. Mr Berry's submission that this court should reverse the Mannai test in the way he suggests has some attractions of linguistic logic, but in my view it overturns the policy of Mannai. As I have explained, if there is doubt about it a notice is bad. As to his specific points, in my judgment it is artificial not to read all the documents together. Secondly, as I have said already, in my judgment a reasonable recipient of a notice need not be taken to know that a notice in the form of document A could not be amended. As I have said already, his third point is also one which I reject because the notice, document A, still makes a statement even if it does not comply with section 25(6) of the Landlord and Tenant Act 1954.
  69. There are two further answers I would give. First, Mr Berry's alternative submission comes to saying that an effective notice can only be rendered ineffective by another effective notice. As I see it there is no reason why there should be any such restriction, and it is indeed contrary to what is said in Mannai Investment itself. In that case it was established that in the construction of notices, as in the construction of commercial contracts, the court should have regard to the factual matrix. Lord Hoffmann said, at page 779:
  70. "In the case of commercial contracts, the restriction on the use of background has been quietly dropped. There are certain special kinds of evidence, such as previous negotiations and express declarations of intent, which for practical reasons it is unnecessary to analyse, are inadmissible in aid of construction. They can be used only in an action for rectification. But apart from these exceptions, commercial contracts are construed in the light of all the background which could reasonably have been expected to be made available to the parties in order to ascertain what would objectively have been understood to be their intention: Prenn v Simmonds [1971] 1 WLR 1381, 1383. The fact that the words are capable of literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say that they used the wrong words. In this area, we no longer confuse the meaning of words with the question of what meaning the use of the words was intended to convey. Why, therefore, should the rules for the construction of notices be different from those for the construction of contracts? There seems to me no answer to this question. All that can be said is that the rules for the construction of notices, like those for the construction of wills, have not yet caught up with the move to common sense interpretation of contracts which is marked by the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989. The question is therefore whether there is any reason not to bring the rules for notices up to date by overruling the old cases."
  71. My second answer to Mr Berry's alternative submission is that, as that passage shows, it is now recognised that the relevant background is relevant to the interpretation of notices and, accordingly, that the whole of the background available to the parties can be taken into account. This is demonstrated not only in the speech of Lord Hoffmann to which I have referred, but also in the speech of Lord Steyn at page 767G. Lord Steyn says this:
  72. "The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene."
  73. Lord Clyde, the third member of the majority of the House of Lords in Mannai Investment, did not deal with this point, but in my judgment what was said by Lord Steyn and Lord Hoffmann is compelling on this issue.
  74. Turning now to the facts of this case. It is clear that there had been warnings from the landlord that he wanted to reconstruct the premises and for good reason: the premises were not well organised. How then, I ask, could it be plain to the tenant that the landlord would not oppose when he had served on the tenant a document stating that that was his intention? In my judgment it matters not that that statement was not in a notice which was itself effective under section 25. It must be recalled that in my judgment the tenant cannot be taken to have known that that document could not be amended to state grounds of opposition later.
  75. Accordingly, I too would dismiss this appeal.
  76. MR JUSTICE WILSON: I respectfully agree with both judgments.
  77. The fact that document A would in any event have been invalid under section 25(6) of the Act of 1954, in that it failed to state any ground for opposition to the grant of a new tenancy, does not disentitle it from being part of the context necessary to the construction of document B. The covering letter dated 18 December 1997 enclosed the two documents and alleged that the one was a copy of the other. Of course, as was immediately apparent to the tenant's agent, neither was a copy of the other. On the contrary, the kernel of the two documents was entirely inconsistent and the central message to the tenant was hopelessly and instantaneously confused. In those circumstances, despite appearances when each is taken out of context, neither of the documents enclosed under cover of that letter can sensibly be construed to have made the statement of intention as to opposition or otherwise, which is a pre-requisite of its effectiveness set by section 25(6) of the Act.
  78. ORDER: Appeal dismissed with costs summarily assessed in the sum of 4,744.64; permission to appeal to the House of Lords refused.
    (Order not part of approved judgment)


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